IN THE COURT OF APPEALS OF IOWA
No. 17-0929
Filed August 16, 2017
IN THE INTEREST OF Z.S.,
Minor Child,
B.S., Father,
Appellant,
K.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan C. Cox, District
Associate Judge.
A mother and father separately appeal the termination of their parental
rights to their four-year-old son. AFFIRMED ON BOTH APPEALS.
Ryan R. Gravett of Oliver Gravett Law Firm, Windsor Heights, for
appellant father.
Thomas P. Graves of Graves Law Firm, P.C., Clive, for appellant mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Karl Wolle of Juvenile Public Defender’s Office, Des Moines, guardian ad
litem for minor child.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
2
TABOR, Judge.
A mother, Kelsey, and a father, Brad, separately appeal the juvenile court
order terminating their parental relationship with their four-year-old son, Z.S.
Kelsey argues the State failed to prove a statutory basis for termination,
termination was not in Z.S.’s best interests, and the juvenile court should have
declined to terminate because the maternal grandmother had custody of Z.S.
Brad contends the Iowa Department of Human Services (DHS) failed to make
reasonable efforts to provide reunification services by not offering visitation while
he was incarcerated. He also argues termination was not in Z.S.’s best interests.
Upon our independent review of the record,1 we find clear and convincing
evidence supporting the conclusions of the district court.
I. Facts and Prior Proceedings
In November 2014, one-and-a-half-year-old Z.S. came to the attention of
the DHS through a report Kelsey and Brad were using methamphetamine. Both
parents tested positive for the drug, and Kelsey also tested positive for
tetrahydrocannabinol (THC), the active component of marijuana. Kelsey
immediately entered inpatient treatment at House of Mercy with Z.S., but she left
after three days, instead opting for an outpatient treatment program. Brad too
entered outpatient substance-abuse treatment, and he reached maximum
benefits from the program in late March. His provider recommended continuing
1
We review child-welfare proceedings de novo, which means we examine both the facts
and law and adjudicate anew those issues properly preserved and presented. See In re
L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We are not bound by the factual
findings of the juvenile court, but we give them weight. In re M.W., 876 N.W.2d 212, 219
(Iowa 2016). Proof must be clear and convincing, which means we see no “serious or
substantial doubts as to the correctness [of] conclusions of law drawn from the
evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
3
care, in which Brad participated inconsistently. Both parents completed
psychological assessments resulting in recommendations for therapy. Kelsey did
not seek treatment; Brad attended therapy sporadically.
The juvenile court adjudicated Z.S. a child in need of assistance (CINA) on
April 21, 2015, following an uncontested hearing. The court determined Kelsey
was no longer using illegal drugs and allowed Z.S. to remain in her care. Brad
remained in the home, but the DHS required his contact with Z.S. to be
supervised by Kelsey.
Following the adjudication, Kelsey successfully completed substance-
abuse treatment. But as time went on, conflict between Kelsey and Brad
intensified. The two separated in early November 2015, shortly after Brad was
arrested for driving without a license. On November 9, at Kelsey’s request, the
district court issued an order prohibiting Brad from having contact with her.
After receiving notice of the no-contact order, Brad sent text messages to
Kelsey and DHS social workers leading them to believe he had attempted to
commit suicide. Brad, who had a history of suicidal ideation, eventually admitted
himself to the local hospital for mental-health treatment. But he did not seek
regular treatment after his release.
Although the no-contact order remained in effect, in February 2016, Brad
moved back in with Kelsey. Kelsey also began allowing Brad to have
unsupervised contact with Z.S. Brad was arrested for violating the no-contact
order in March 2016. Z.S. was in his care at the time. As a result of the arrest,
the district court revoked Brad’s probation for possession of a controlled
4
substance as an habitual offender, and he remained incarcerated for the balance
of the case.2
The juvenile court ordered Z.S.’s removal from Kelsey’s care that same
month. The DHS eventually placed Z.S. with his maternal grandmother, and he
remains in her care.
At the time of removal, Kelsey refused to comply with DHS requests she
submit to drug screens. Accordingly, the court ordered Kelsey to submit to drug
testing in May 2016. She did not comply until July 26, and she tested positive for
amphetamine and methamphetamine at that time. After Z.S.’s removal, Kelsey
was inconsistent with visitation. She lost her housing and began sleeping in
“drug houses” or her car. Kelsey moved in with a cousin around June but
continued to use illegal drugs.
The State filed a petition to terminate the rights of both parents on
September 23, 2016. But the State requested a continuance of the termination
hearing after learning Kelsey had entered inpatient treatment at House of Mercy.
The court granted the State’s request.
The records from House of Mercy revealed the extent of Kelsey’s
substance abuse. In her screening interview, Kelsey stated she had last used
methamphetamine on September 13, 2016. She reported a pattern of injecting
the drug two to three times a day. The treatment provider found Kelsey met the
DSM V criteria for severe amphetamine use disorder.
2
The district court ordered Brad to be incarcerated for a period not to exceed fifteen
years. Based on this information, DHS workers believed Brad’s expected release date
from prison would be January of 2023. Brad testified at trial he expected to be released
on parole in October 2017.
5
While at House of Mercy, Kelsey transitioned to overnight weekend visits
with Z.S. But Kelsey’s progress in treatment soon waned. She tested positive
for THC on January 15, 2017.3 Kelsey told service providers she went to a
friend’s house where other guests were smoking marijuana. She denied
smoking the drug but admitted to staying for a few hours. At a family team
meeting, service providers expressed concern Kelsey was showing other signs of
relapse, such as skipping sessions and lacking engagement in the sessions she
did attend. Kelsey’s providers also became increasingly concerned about her
honesty. In one instance, House of Mercy staff granted Kelsey a pass to spend
the day with her Narcotics Anonymous (NA) sponsor, but when an employee
from House of Mercy contacted the NA sponsor, she discovered Kelsey had not
used the pass to meet with her sponsor, nor had she seen or spoken with her
sponsor in more than a month.
Kelsey was unsuccessfully discharged from House of Mercy in early
February 2017. In her discharge summary, Kelsey’s substance-abuse provider
noted:
Kelsey has made minimal progress during her five month stay of
inpatient treatment. Client has spent the majority of her time being
caught up in addictive and criminal thinking patterns. Client
continuously manipulated staff and circumstances in an effort to get
her way. Client was often unwilling to accept feedback, take
accountability for poor decisions. She lacked the ability to make
positive choices and make necessary efforts in order to effect
change in her own life.
Her provider concluded Kelsey needed “long term residential treatment” to
properly address her substance-abuse disorder.
3
Kelsey reportedly completed a negative drug screen in the days before and after this
result. Those test results were not admitted as exhibits at the termination hearing.
6
After her discharge, Kelsey moved in with a cousin and began outpatient
treatment at a different facility, which consisted of one day of treatment and two
AA or NA meetings each week. Records from the provider verified Kelsey had
attended group therapy three times and missed twice in her first five weeks of
treatment. According to Kelsey, her new treatment provider did not offer drug
screens. She requested the DHS to authorize a drug screen, but the DHS
denied her request.4
The termination hearing took place on March 8 and 31, 2017. By the time
of the hearing, Kelsey had reverted to supervised visitation with Z.S. Brad had
not visited or spoken with Z.S. since his arrest the year before. In a detailed
ruling issued on May 30, 2017, the juvenile court terminated the parental rights of
Brad under Iowa Code section 232.116(1)(e) (2017), and both Brad and Kelsey
under section 232.116(1)(h).
Both parents appeal the juvenile court’s order.
II. Analysis of Mother’s Issues
A. Statutory Ground
Kelsey argues the State failed to prove a statutory ground for termination.
The juvenile court terminated her rights under Iowa Code section 232.116(1)(h).
To terminate under that subsection, the State was required to prove, by clear and
convincing evidence, Z.S. (1) was three years old or younger; (2) had been
adjudicated CINA; (3) had been removed from Kelsey’s physical custody for at
4
When asked about the denial at the termination hearing, a DHS social worker
explained: “[A] clean screen to me does not warrant a change of recommendation, and
when clients ask me to drop and tell me on a Monday or a Tuesday that they want me to
drop, then I’m not going to drop them, when they are asking, because it’s not random.”
Kelsey provided a negative drug screen on March 17.
7
least six of the past twelve months, or for the last six consecutive months with
any trial period at home lasting under thirty days; and (4) could not be returned to
Kelsey’s custody at the time of the termination hearing. See Iowa Code
§ 232.116(1)(h). Kelsey challenges the first and fourth requirements.
First, Kelsey argues the State failed to prove the age requirement of
subsection (h) because, although Z.S. was three years old at the time of the
termination hearing, he had turned four by the time the juvenile court issued its
termination order. We find this argument to be without merit. For the purposes
of section 232.116, “we measure the child’s age at the time of the termination
hearing, not at the time the termination order was entered.” See In re R.W., No.
15-2024, 2016 WL 899269, at *1 (Iowa Ct. App. Mar. 9, 2016); see also In re
N.N., 692 N.W.2d 51, 53 (Iowa Ct. App. 2004) (finding Iowa Code section
232.116(1)(h) applies to “children who are past their third birthday but who have
not yet reached age four” at the time of the termination hearing).
Second, Kelsey argues Z.S. could have been safely returned to her care,
reasoning: “Mother is employed. She can live with grandmother. She is drug-
free. She continues to seek treatment to remain drug-free.” We disagree with
Kelsey’s assessment of her progress. By Kelsey’s own account, she again
began using methamphetamine in March 2016. But she delayed seeking
treatment for another six months. Once she entered treatment, Kelsey’s
progress was “minimal” and her poor choices led to an unsuccessful discharge.
Further, Kelsey’s attendance at outpatient treatment after her unsuccessful
discharge was inconsistent. Even if we credited Kelsey’s testimony that she was
no longer using methamphetamine at the time of the termination hearing, her
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lack of commitment in treatment makes us doubt her ability to maintain sobriety.
Accordingly, we agree with the juvenile court that Z.S. could not be safely
returned to Kelsey’s care at the time of the termination hearing. See In re A.B.,
815 N.W.2d 764, 776 (Iowa 2012) (“We have long recognized that an
unresolved, severe, and chronic drug addiction can render a parent unfit to raise
children.”).
B. Best Interests
Kelsey next argues termination of her parental rights was not in Z.S.’s best
interests “[b]ecause of the close relationship of mother and child, because
mother is clean and sober, because mother is ready, willing and able to care for
Z.S., [and] because she has strong family support.” In our evaluation of Z.S.’s
best interests, we give primary consideration to Z.S.’s safety, to the best
placement for furthering his long-term nurturing and growth, and to his physical,
mental, and emotional condition and needs. See Iowa Code § 232.116(2); see
also In re P.L., 778 N.W.2d 33, 37 (Iowa 2010).
Termination is in Z.S.’s best interests. Throughout the proceedings,
Kelsey struggled with substance-abuse issues. Her lack of engagement in
treatment—despite the imminence of the termination hearing—demonstrated an
inability to truly address her addiction. Although we do not doubt Kelsey’s love
for her son, these proceedings have left Z.S. in limbo for nearly three years. Z.S.
should not have to continue to wait for his mother to achieve sobriety and
stability. See P.L., 778 N.W.2d at 41 (stating courts will not deprive a child of
permanency after the State has proved a statutory ground for termination “by
9
hoping someday a parent will learn to be a parent and be able to provide a stable
home for the child”).
C. Relative Placement
Finally, Kelsey argues the juvenile court should have declined to terminate
because Z.S. was placed with his maternal grandmother. Under Iowa Code
section 232.116(3)(a), the juvenile court may decline to terminate the parent-child
relationship when “[a] relative has legal custody of the child.” But the court is not
obligated to forego termination if this factor is satisfied. In re D.S., 806 N.W.2d
458, 474–75 (Iowa Ct. App. 2011).
Initially, Z.S. is not in the “legal custody” of his maternal grandmother.
See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014). Further, we agree with the
juvenile court’s determination that delaying termination would be harmful to the
child. The grandmother is willing to adopt Z.S., and Z.S. is doing well in her care.
But these proceedings have been difficult for Z.S. He has exhibited behavioral
issues both before and after his visitation with Kelsey. Under these
circumstances, we conclude this permissive consideration does not outweigh
Z.S.’s need for permanence. Accordingly, we affirm the termination of Kelsey’s
parental rights.5
5
In passing, Kelsey states: “A six month extension could be granted so mother could
demonstrate . . . she will stay clean and sober and continue to work toward being able to
meet all the needs of Z.S.” To continue a child’s placement for an additional six months,
the court must find the need for removal will no longer exist at the end of six months.
See Iowa Code § 232.104(2)(b). We note the juvenile court essentially granted Kelsey
an additional six months when it postponed the termination hearing after Kelsey entered
substance-abuse treatment. Considering Kelsey’s meager progress in that time, we
cannot state with any certainty Kelsey will be prepared to resume care of Z.S. in six
months. Accordingly, to the extent Kelsey asks for a six-month extension, we deny her
request.
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III. Analysis of Father’s Issues
A. Reasonable Efforts
Brad argues the State failed to make reasonable efforts to reunify him with
Z.S. He maintains the DHS should have offered him visitation while he was
incarcerated. See In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000) (finding
a parent’s incarceration does not “absolve[] the department of its statutory
mandate to provide reunification services under all circumstances”). The State
contends error was not preserved on this claim.
“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); see also In re
L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994) (requiring parents to raise
reasonable-efforts argument before the termination hearing to preserve the claim
for appellate review). At no time after Brad’s incarceration in March 2016 did he
raise a reasonable-efforts argument to the juvenile court. Accordingly, this claim
is not preserved for our review, and we decline to address it.
B. Best Interests
Brad also argues termination of his parental rights was not in Z.S.’s best
interests. Brad’s argument hinges on Kelsey’s progress throughout the
proceedings. He claims: “The record presented at termination was sufficient to
make a finding that should she continue the path she was on at the time of the
permanency/termination hearings that a reunification would have likely occurred
within the next six months.” He reasons that because he would “likely be[]
11
released prior to the expiration of that six months . . . it is likely [Brad] would have
hit the ground running with services and his commitment to his son.”
Brad lacks standing to assert an argument on Kelsey’s behalf “to
ultimately gain a benefit for himself, that is, the reversal of the termination of his
parental rights.” In re K.R., 737 N.W.2d 321, 323 (Iowa Ct. App. 2007).
Moreover, to the extent Brad raises this claim on his own behalf, we find
termination of his parental rights is in Z.S.’s best interests. Brad had been
incarcerated for over a year at the time of the termination hearing. And even
before his incarceration, he failed to meaningfully address his substance-abuse
issues—only inconsistently participating in treatment—or his serious mental-
health concerns. With these issues unresolved, Brad will not be able to foster
Z.S.’s mental and physical wellbeing. We affirm the termination of Brad’s
parental rights.6
AFFIRMED ON BOTH APPEALS.
6
Without further development, Brad also mentions “the [c]ourt could make an exception
since the child is in relative placement and the parents have a close bond with the child.”
See Iowa Code § 232.116(3)(a), (c). We reject Brad’s claim regarding relative
placement for the reasons stated above. Moreover, Brad has been out of Z.S.’s life for
more than a year. Any bond that remains between Z.S. and his father does not warrant
preservation of the parent-child relationship.